Conception of Marriage:
The central idea in the family law of the Muslims is the institutions of Nikah or marriage. It is through marriage that paternity of children is established and relationship and affinity are traced.
Hedaya defines it as, “it is a contract which has its objects begetting and legalizing of children. ”
According to Dr. Tanzil-ur-Rehman. “marriage is a religious legal contract which regularizes the relationship between man and women establishes the lineage of their progeny and creates right and obligations between them. ”
D.F Mulla “marriage as a contract which has for its object the procreation and legalization of children.”
Essentials of Valid Marriage:
There are number of essentials for a valid marriage contract. In the first place the parties must be able to understand the nature of their act for, if either of them is non-compus mentis or is incapable of understanding the nature of the contract it is void. In the second place they must be adult, and in the third place they must be acting of their free will and not under compulsion.
(Syyed Ameer Ali)
“Among the conditions which are requisite for the validity of contract of marriage” says Fatawa Alamgiri are understanding, puberty and freedom in the contracting parties, with this difference that whilst the first requisite is essentially necessary for the validity of the marriage, as a marriage cannot be contracted by majnun (non compos mentis) or a boy without understanding the other two conditions are required only to give operation to the contract, as the marriage contract by (minor) boy (possessed) of understanding is dependent for its operation on the consent of his guardian.
(FatawaAlamgiri (Vol 1 P. 377).
Two requisites must be fulfilled by the parties to be competent for the purpose of marriage contract. These are:
A marriage contracted by minor who has not arrived at the age of discretion, or who does not possess understanding, or who cannot comprehend the consequences of the act a mere nullity. Majority is presumed among the Hanafis and shiahs on the completion of fifteenth year, unless there was evidence that puberty is attained earlier.
A marriage contract entered into by a person who is insane or whose mind is so diseased that he cannot comprehend his act, is null and void, unless it made during lucid intervals.
Offer & Acceptance:
It is essential to the validity of marriage that there should be a proposal made by or on behalf of one of the parties and the acceptance on behalf of the other. The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting and acceptance made at another meeting does not constitute a valid marriage contract. In a marriage contract, Says Dr. Tanzil-ur-Rehman generally the proposal is made on behalf of the women and an acceptance is made on behalf of man. (Code of Muslim personal law vol; 1 P. 56.)
Presence of Witnesses:
Another essential element for the purpose of marriage contract is the presence of witnesses and hearing of the proposal and acceptance of the marriage contract by them at the marriage meeting or gathering. There are three aspects of the same; firstly the presence of witnesses, second the number of witnesses and third is the eligibility or competency of the witnesses to hear evidence of the proposal and acceptance made.
Opinion differs on the validity of marriage contracted in the absence of witnesses. The Hanafis, the shafis and Hanbalis consider the presence of witnesses as an essential condition of a valid marriage. Imam Malik however, is of the view that the presence of witnesses, at the time of nikah, is not an essential condition of its validity provided the marriage is duly publicized. According to Shias, the presence or absence of witnesses in a marriage is quite immaterial.
And give the women (on marriage) their dower as a free gift, but if they of their own good pleasure remit any part of it to you, take and enjoy it with right good cheer. (4:4)
Dower is that financial gain that women is entitled to receive from her husband by virtue of the marriage contract itself whether named or not in the contract of marriage. Dower according to Hanafis is a condition precedent to the lawfulness of the marriage contract. According to them, therefore, marriage contract without dower is not lawful. According to Iman Shafi, dower is no condition for marriage contract and without dower a marriage contract shall be valid.
Ye are forbidden to marry your mothers, your daughters, your sisters and your aunts, both on the father and on the mothers side; your brother’s daughters and yours sisters daughters; your mothers who have given you suck and your foster sister: Your wives mothers, your daughters in law born of your wives with whom ye have cohabited.
Ye are also prohibited to take to wife two sisters (except what is already past), nor to marry women who are already married.
Prohibitions founded on Consanguinity:
According to the Bahr-ur-Raik, marriage is forbidden on the ground of consanguinity with the following women.
- Mother and all female ascendants.
- Daughters and al female descendants.
- Sister and her female descendant.
- Brothers daughters.
- Fathers sister (but not her daughter or any other descendant.
- Mothers sister (but not her daughters or any other descendant)
Prohibitions for Affinity:
Affinity prohibits the man following women.
- Mothers in law.
- Wives daughters.
- Son’s wife.
- Step-mothers or any women with whom the father or any other ancestor has committed fornification.
Among the shiahs, marriage is forbidden for posterage in the same order as in the case of nasab.
O ye who believe ye are forbidden to inherit women against their will. (Al-Quran 4: 19).
No contract can be said to complete unless the contracting parties understands its nature mutually consent to it. A contract of marriage also implies mutual consent; and when the parties see one another; and of their own accord agree to bind themselves, both having the capacity to do so, there is no doubt as to the validity of marriage.
On the other hand, marriage contracted without consent of parties is not valid. The consent of women is necessary, whether she be a major virgin or divorced. Her guardian, according to the Hanfis, cannot compel her to enter into a marriage contract.